It is difficult to predict how the antitrust trends and policies that have evolved over the past decade will play out under the Trump administration. The president has already made some picks for antitrust leadership that suggest – consistent with his overall pro-business platform – that antitrust enforcement will decrease in some areas. Thus, the cartel space will be an interesting one to watch.
With the departure of now former Chair Edith Ramirez in early February 2017, among the most discussed vacancies in the new administration is the post of permanent chair of the Federal Trade Commission (FTC). According to reports, one leading candidate is Acting Chair Maureen Ohlhausen, whose selection could have significant implications for FTC policy areas, particularly with respect to disgorgement remedies in antitrust cases.
Although tolling agreements are increasingly common in the energy industry, parties that have or may have an interest in acquiring the other party to the agreement must be careful to avoid assuming beneficial ownership of the target before complying with the Hart-Scott-Rodino reporting requirements if Hart-Scott-Rodino notification is required. Failure to do so may result in the tolling agreement constituting evidence of gun jumping and the acquiring person being subject to significant penalties.
The Federal Trade Commission released the annual jurisdictional adjustments for pre-merger notification filings made pursuant to Section 7A of the Clayton Act, known as the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as well as for Section 8 of the act. The new filing thresholds for Hart-Scott-Rodino notification will become effective 30 days after publication in the Federal Register, while the revisions to Section 8 will become effective immediately on publication in the register.
The US Antitrust Division of the Department of Justice and the Federal Trade Commission recently issued guidance for human resources (HR) professionals on steps to avoid antitrust violations. The guidelines – which cover 'no-poaching' agreements, agreements to fix wages or other terms of employment and the exchange of HR information – reveal the agencies' determination to scrutinise the employment arena and their intention to use, if necessary, their most powerful enforcement tools.
The Second Circuit Court of Appeals recently overturned a federal district court judgment in a class action antitrust lawsuit against two Chinese companies accused of conspiring to fix the price and output of vitamin C sold into the United States. The court held that the companies were compelled to fix the price and output by Chinese law, and therefore their conduct was outside the antitrust jurisdiction of the US federal courts.
The Federal Trade Commission recently announced that a UK public limited company has agreed to pay a fine to settle charges that it had violated the Hart-Scott-Rodino Act pre-merger notification and waiting period requirements when it acquired voting securities through the vesting of restricted stock units. Parties should take care when acquiring voting shares, assets or non-corporate interests, regardless of whether they are US entities and how the acquisition is structured.
The Department of Justice and the Federal Trade Commission recently issued proposed updates to their Antitrust Guidelines for the Licensing of Intellectual Property. The revisions do not substantively modify the general principles of the 1995 guidelines; nor do they address some of the hottest topics at the intersection of antitrust and IP law – in particular, conduct involving standard-essential patents and patent assertion entities.
The Department of Justice recently announced that ValueAct Capital has agreed to pay a record $11 million civil penalty to settle allegations that the activist investment firm violated the notification and waiting period requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 when it acquired more than $2.5 billion in voting shares of Halliburton and Baker Hughes. The previous record fine for an Hart-Scott-Rodino Act violation was $5.67 million.
The Federal Trade Commission (FTC) has announced significant increases to the maximum civil penalties for violations of numerous laws and regulations that it enforces, including pre-merger notification requirements under the Hart-Scott-Rodino Antitrust Improvements Act. The FTC has increased the civil penalties for Hart-Scott-Rodino Act violations by 150%, from $16,000 per day to $40,000 per day.
The Department of Justice recently signalled further strong support for tools to improve the efficiency of healthcare delivery, including improved transparency for patients and the removal of impediments to steering patients to low-cost or high-quality healthcare providers. Providers contemplating contractual restrictions on insurer steering are encouraged to ensure that such restrictions are reasonably necessary to achieve legitimate business objectives.
The US Department of Justice has filed a complaint in federal court against activist investor ValueAct Capital for violating the reporting and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The complaint against ValueAct focuses on whether its actions and statements were consistent with an investment-only intent.
The treatment of exchanges of competitively sensitive information among competitors represents a new frontier in antitrust enforcement because the law in the United States differs from that in the European Union and some other countries. Both antitrust advisers and enforcers may find it challenging to know where to draw the line because information exchange cases are murkier than 'smoke-filled room' cases.
The Federal Trade Commission recently released the annual jurisdictional adjustments for pre-merger notification filings made pursuant to Section 7A of the Clayton Act, known as the Hart-Scott-Rodino Antitrust Improvements Act of 1976, and for Section 8 of the Clayton Act. Both changes should be effective by the end of February 2016.
A February 2015 Supreme Court decision held that state regulatory boards run by "a controlling number" of "active market participants" can qualify for an antitrust exemption only if they are "actively supervised" by the state. But the court left the content of those key terms vague. The Federal Trade Commission staff has now issued guidance on how it believes the decision should be implemented.
For only the second time the Antitrust Division of the Department of Justice has recommended that a corporate defendant receive a fine reduction for the implementation of an effective compliance programme. In making its recommendation, the department provided a non-exhaustive account of the steps taken by the defendant to implement an effective compliance programme, and identified several "hallmarks of an effective compliance policy".
The Federal Trade Commission recently announced a settlement with Third Point, LLC and three affiliated investment funds for violations of the Hart-Scott-Rodino Antitrust Improvements Act 1976 in connection with their 2011 acquisitions of shares in Yahoo! Inc. The settlement highlights the need for vigilance in monitoring Hart-Scott-Rodino compliance in connection with the acquisition of voting securities of any corporation.
The Federal Trade Commission Bureau of Competition recently released a revised set of best practices for merger investigations. These new best practices re-emphasise several strategic and effective ways for parties to avoid the burden or cost of a second request and reaffirm that the most productive way to do so is to engage with staff on the relevant issues as early as practicable.
The US Federal Trade Commission (FTC) recently issued its first set of principles governing enforcement of 'unfair methods of competition' under Section 5 of the Federal Trade Commission Act. The statement – which is only 324 words long – summarises the principles that have long guided the FTC's enforcement decisions in this area, but provides little concrete guidance to the business community or the antitrust bar.
The Supreme Court recently ruled that state professional boards controlled by private entities must be supervised by state governments to fall within the scope of the state action antitrust immunity doctrine. Companies and private market actors that participate on state regulatory boards as part of hybrid agencies or in trade associations should be aware of the decision's potential impact.